Byard Edwards, Jr. VS Louisiana Farm Bureau Mutual Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1495 BYARD EDWARDS JR VERSUS LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY JudgmentRendered AP 2 6 2 On Appeal from the 21 Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No 2007 D 750 G The Honorable M Douglas Hughes Judge Presiding Stacey Moak Christopher W Stidham Baton Rouge Louisiana Louisiana Farm Bureau Blayne Honeycutt Denham Springs Louisiana Attorneys for Plaintiff Appellee Byard Edwards Jr D Attorneys for Defendant Appellant Mutual Ins Co and Chad Pinkerton Webster Texas BEFORE GUIDRY CRAIN AND THERIOT JJ CRAIN J Louisiana Farm Bureau Mutual Insurance Company appeals a summary judgment finding insurance coverage for exemplary damages and a subsequent judgment based on a jury verdict rendered in favor of Byard Edwards Jr Edwards answered the appeal and seeks an increase in the award of general damages and a reversal of the trial court denial of a bad faith claim against Farm s Bureau For the following reasons we reverse and render on the summary judgment vacate the award ofexemplary damages and affirtn in all other respects FACTS AND PROCEDURAL HISTORY Edwards was involved in an automobile accident on June 5 2006 with a vehicle operated by Kellie Dean Edwards sustained injuries and Dean admitted she was driving under the influence of cocaine Dean was proceeding south on Pontchartrain Drive in Slidell Louisiana when her vehicle left the roadway crossed a parking lot struck a tree and hit two other automobiles before coming to rest upside down against a telephone pole Edwards was a guest passenger in the second automobile impacted in the collision and his ex Stephanie Kraemer wife was the driver s Dean negligence was the sole and proximate cause of the accident as determined by a summary judgment that was not appealed Neither Dean nor the owner of the vehicle she was driving had automobile liability insurance Farm Bureau provided uninsured motorist insurance UM to Edwards underinsured through three polices an automobile policy issued to him an automobile policy issued to Kraemer and covering the vehicle occupied by Edwards and an umbrella policy issued to Edwards Prior to this litigation Farm Bureau tendered 00 000 400 in UM benefits and 10 in medical payments coverage to 00 000 Edwards which exhausted the combined limits of the two automobile policies 2 Edwards then filed suit against Farm Bureau seeking additional UM benefits under the umbrella policy Edwards amended his petition to also seek exemplary damages under the umbrella policy pursuant to Louisiana Civil Code article 2315 4 based upon allegations that the accident and injuries were caused by Dean s operation of a motor vehicle while unu the influence of an illicit substance er Farm Bureau denied coverage for exemplary damages under the umbrella policy and both parties filed summary judgment motions on that issue The trial court found coverage far exemplary damages and granted a summary judgment in favor of Edwards The case proceeded to a jury trial that resulted in a verdict for Edwards in the amount of 820 consisting of the following awards 100 in 00 000 00 000 medical expenses 200 in past loss ofwages 160 in future loss of 00 000 00 000 wages and eamings capacity 160 in general damages and 200 or 00 000 00 000 in exemplary damages The general damage award was itemized as 20 00 000 for past and future physical pain and suffering 40 in past mental anguish 00 000 00 000 50 far disability and 50 for loss of enjoyment of life 00 000 did not award damages for future mental anguish The jury Edwards filed a motion for judgment notwithstanding the verdict JNOV seeking an award for that item which the trial court denied Pursuant to a pre stipulation Edward bad faith claim was tried trial s separately to the trial court who found in favor of Farm Bureau A single judgment was signed that set forth the judgment on the jury verdict the denial of the JNOV and the denial of the bad faith claim After deducting the pre suit tender the net amount of the judgment in favor of Edwards and against Farm Bureau was 410 plus legal interest 00 000 By a sepazate Amended Petition for Damages Edwards added Dean and Cedric Ducre the owner of the vehicle she was driving as defendants however they were never served with citation or process and were never cast in judgment 3 Farm Bureau appeaied arzd a fiee assignrxients of error I the trial serted court erred in granting Edw ra for summary j adg and denying Farm ard otion cnent s Bureau motion for summaa y ment seci jud b upon finding that the umbrella policy covered exemplary damages 2 the award of exemplary damages was manifestly erroneous because Ed failed io satisfy his burden of proof 3 the ards award of exemplary damag as abusivelv i 41 the awara for past lost wages s igh was manifestly erroneous and not supported by the evidence and 5 the award for future lost wages and loss of earning capacity was manifestly erroneous and not supported by the evidence Edwards answered the appeal and asserted four assignments of error 1 the trial court erred in ruling in favor of F Bureau on the bad faith claim 2 the rm trial court abused its discretion by refusing to permit an expert witness to testify about the damages sustained by Edwards as a result of Farm Bureau alleged bad s faith 3 the trial court abused its discretion by failing to grant the JNOV and 4 the juiy award of general damages was an abuse ofdiscretion s INSURANCE COVERAGE Farm Bureau argues that the trial court improperly granted a summary judgment finding coverage for exemplary dam under the umbrella policy ages Summary judgment is properly granted if t3i pieadings depositions answers to interrogatories and admissi togeYher with aifidavits if any shqw that there is ns no genuine issue of material fact and that the cnover is entitl judgment as a dto matter of law La Code Civ Pra ark 966B Appellate courts review evidence 2 de novo under the same criteria that govern the trial court determination of s whether a summary judgme is appropriate All Crane Rental of Georgia Inc v nt Vincent 10 La App 1 Cir 947 So 3d 1024 1027 writ denied 10 0116 10 10 2227 La 11 49 So 3d 387 10 19 4 A summary judgment ma be rende on the issue of insarance coverage y ed alone although there is a genuine issue as to liability ur damages McMath Const 1413 Dupuy Q3 La App Cir 11r17iO4j 897 So 2d 677 680 81 Co Inc writ 5 30 denied 04 La 2J181Q5 596 So v 4 Interpreta2ion of an insurance policy usually nv a leg x wP c be rzselv properly in the lves ic is n sta p framework of a motion for sumrtia jud onin v Westpart Ins Corp OS ry menz 0886 La 5 930 So 2d 906 910 Summary judgment declaring a lack of 06 17 coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy when agplied to the undisputed material facts shown by the evidence supporting the motion under which coverage could be afforded McMath Const Co Inc 897 So 2d at 681 An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil The judicial responsibility in interpreting insurance contracts is to Code determine the parties common intent Words and phrases used in an insurance policy are to be construed using their plain ordinary and generally prevailing meaning unless the wards have acquired a technic meaning La Civ Code arts l 2045 and 2047 Bonin 930 So 2d at 910 An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms ar so as to achieve an absurd conclusion Bonin 930 So 2d at 910 l Unless a po conflicts with statutory provisions 91 icy or public policy it may li an insurer liabiiity and i and enforce it s mpose reasonable conditions upon the policy bligati the irsurer contractually ans assumes Bonin 130 So 2d ai 91Q 911 If an ambiguity reznains afYer applying the other general rules of construction the ambiguous contractual provision is to be construed against the insurer and in favor of coverage S Howecer for this rule of strict constructifln to apply the i pol5cy must be susceptible co two or surance more reasonable xntexpretati nvrein 93 So 2d at 911 The parties do not disp that the ndexiy autam9bile policy provides ate sn iJM coverage but excludes m exernplary datr fr the rage v c The automobile policy sets forth the lilV1 ov n PART IV which is captioned mag PROTECTION AG iJI N10TORIST and IIvTST I TSUREI NDEItII ri SLJRED v consists of eight pages of terms conditioxis and definitions that specify and define the extent of the iJM coverage provided by the policy The UM section begins with an insuring agreement whereby Farm Bureau agrees to pay all sums except punitive and exemplary damages which the insured or his legai representative or shall be legally entitled to recover as damages from the owner or operator of an uninsured or TFiE ensuing pages define numerous underinsured automobile key terms impose exclusions set limits of liability and provide other coverage related conditions all pertainin to the UT coverage I In contrast the umbrella policy cortains no terms and conditions in the basic policy that set forth any JM coverage The insuring agreement provides for indemnity for liability to others with F B agreeing to indemnify Edwards rm ireau for the ultimate net loss in excess of the applicable underlying or retained limit which Edwards may sustain by reaso o y liabili imposed for damages because of personal injury or property damage Th upolicy contains no nbrella g correspondin insuring agreement pra LJI aoverage n the policy Thus the viding 1 only source of LJM cove in the umbrella polic is found in xhe ianguage of an rage endorsement Endorsement 13 which provides AUTOMOBIIlE LIABILITY FQLLOWING FORM EXCEPT TO THE EXTENT THAT COVERAGE IS AVAILABLE TQ THE INSLIRED IN THE UNDERLYING POLICIES AS Z Policy language excluding exemplazy or punitive dasnages from UM coverage does not conflicT with the objective of the UIv1 statute Pike v Nafional Union Fire Ins Co 00 La 1235 App 1 Cir 6 796 So 2d 696 700 O1 22 6 STATED IN THE SCHEDL OF UNDERLYING INSiJRANCE E I THIS POLICY DOES NOT APPLY TO THE OWNERSHIP MAINTENANCE OPERATION USE LOADING OR LJNLOADING OF ANY AUTOMOBILE WHILE AWAY FROM PREMISES OWNED BY RENTED TO OR CONTROLLED BY THE INSURED This endorsement eliminates coverage under the umbrella policy for the use of an autonnobil away from the insured premises exc to the extent that e s pt coverage is available to the insured in the underlying palicies identified in the schedule of underlying insurance The phrase except to the extent that coverage is available to the insured in the underlying policies provides the sole basis for any LTM coverage in the umbrella policy as the policy is otherwise devoid of any terms or conditions setting forth that coverage The schedule of underlying insurance is the second page of the umbrella policy documents and identifies several underlying insurance policies by number term limits and type of coverage The Farm Bureau automobile policy is an identified policy and the listed coverages include Owned Autos Hired Autos Owned Non Autos and UninsuredlUnderinsured Motorist with corresponding underlying policy limits for each coverage Based upon the endorsement reference to the underlying automobile policy s and the absence of any iJM provisions in the umbrella policy the only reasonable interpretation of the endorsement is that the terms and conditions ofthe underlying automobile policy determine the extent of the iIM coverage available to the insured under the umbrella policy The endorsement effectively adopts the terms of the underlying automobile policy into the umbrella policy to establish iJM coverage essential In fact the adoption of the automobile policy iJM coverage terms is s to the creation of iJM coverage in the umbrella policy Without those adopted terms the umbrella policy otherwise has no provisions setting forth LJM coverage 7 This endorsement was a in vins v Louisiana Farm Bureau Mut dressed Ins Co 04 La App 1 Cir u 907 So 2d 733 wherein this court 0282 OS 11 held that an umbrella policy did not prov iiability coverage for an accident de because the occ automobile did nat have underlying coverage with Farm apied Bureau as required by the eeila urrxl policy Evins 907 50 2d at 735 After recognizing that the endorsement limits coverage under the umbrella policy the court determined that the policy did not provide coverage because the automobile was insured under a policy that is not listed on the scfledule of underlying insurance Evins 907 So 2d at The court in Evins thus considered 735 coverage by the underlying automobile policy to be a prerequisite to coverage by the umbrella policy We interpret the endorsement in the same manner in the present case We also note that the endarsement caption labels the provision as s AUTOMOBILE LIABILITY FOLLOWING FORM Our interpretation of the endorsement is consistent with jurisprudence interpreting following form excess liability policies which follow ar adopt the conditions and agreements of the underlying primary liability insurance policy See State ex rel Div of Admin Office ofRisk Mgmt v Nat Union Fire Ins Co ofLa 10 La App 1 Cir l 0689 11 11 256 So 3d 1236 1244 writ denied ll La 6 63 So 3d 1 0849 11 3 23 Rivere v Heroman 96 La App 4 Cir 2 688 So 2d 1293 1294 1568 S197 Unless there is an express exception to the form of the underlying insurance the excess carrier in a follow fornr policy r act according to the underlying lust insurance policy terms Toston v Nat Union Fire Ins Co ofLouisiana 41 s l 567 La App 2 Cir ll 942 So 2d 1204 1207 06j 3 Edwards argues that the umbrella policy is not limited by the underlying automobile policy He relies primarily on the last sentence of the other insurance clause contained in the umbrella policy which provides 8 Other Insurance The insurance afforded by this policy shall be excess insurance over any other valid and collectable insurance available to the INSURED whether or not described in the schedule of underlying insurance and applicable to any part of ultimate net loss whether such other insurance is stated to be primary contributing excess ar contingent Nothing herein shall be construed to make this policy subject to terms conditions or limitations of such otherinsurance Other insurance clauses are typically used to determine the order and allocation of responsibility among insurers when multiple policies apply to the same claim See Penton v Hotho 601 So 2d 762 La App 1 Cir 1992 VVilliam Shelby McKenzie H Alston Johnson III Insurance Law Louisiana Civil Law Treatise 699 4 Ed Practice 19 7 15 The application of the umbrella s policy other insurance clause is not necessary in this case because the umbrella s policy insuring agreement and associated defmitions establish that it is a true excess policy over and above the policies listed in the schedule of underlying insurance The final sentence of the clause also must be construed with due regard to the automobile policy endorsement which reserves automobile coverage in the umbrella policy only to the extent that coverage is available to the insured in the underlying policies listed in the schedule The umbrella policy document has no iJM coverage provisions or terms except to the extent they are adopted from the automobile policy pursuant to the endorsement Consequently if the final sentence of the other insurance clause was construed to apply to the automobile policy then the only terms setting forth UM coverage in the umbrella policy would be eliminated Sucli an interpretation would defeat any iJM coverage in the umbrella policy and would be contrary to the parties intentions expressed in the endorsement To the extent any conflict exists between the endorsement and the other insurance clause in the policy the endorsement must prevail Corkern v Main Ins Co Chicago Ill 268 So 2d 138 140 La App 1 Cir 1972 writ not 9 a j considered 263 I 508 26 So 2d 679 3 97 azdsco Bludes Casting Inc v s Fireman Fund Iras a 31 Tia p ir 5 73 So tid 164 166 99j v Zeitoun v Orlear Farish Sch r Q9 l iL A ir 3 33 So 3d s 10 3110 361 365 vor a 1Q w f 3 a 3d 3 C Properry r Era f La l 4d ti u 13 rzi c a C T Interesfs L a sar us e 35 a a p ra t zs ds Edwaa reli upoi All ti Allstc 1r Gir fl Ss 2 49 Q9 l 3d r C 1451 0 a A 3 Cir pp 09 Si6 10 So 3d 374 377 writ denied 09 La 9 17 So 3d 977 for 1264 09 18 the proposition that the question of coverage under the umbrella policy is resolved by the express terms of the umbrella polacy itself However consistent with that statement of law the endorsement zhat determines the extent of the LM coverage in the Farm Bureau umbrella policy is included in the express terrr of the s umbrella policy court The in Allen Nas not confronted with an endorsement defining the amount of automobile cov offered by an umbrella policy rage Rather the court considered conflicting definitions oi insured which appeared in the underlying policy and t umbrella pali As stated previously the Farm ie cy Bureau umbreIla policy coa n e terms applicabl to L coverage tains press i l except the endorsement sreference to the underl schedule oa insurance so no in conflicting terms are presen by the umbrella policy and fhe underlying d automobilepolicy For these reasons we hold that the a poLcy d not pravide el mb es coverage f exexr damag aa rve rever the ranting of the summary ar plary d se judgment zn fauor a Edwa ard i s uctgn ir favor Qf Far F ds er layy ent ersc kdaa a m Bureau RTe lil vaca as aet as the avvard Fex da a ewise e sie rripPary ages ainst Farm Bureau contained in the jud ment ln l f his rulin e c no cons Patr Bureau ghi der a st renainimg assignments r oferr corc 8i exemplarav damage a ae ard 10 DAMAGE Both parties assert inuitiple assigr f error concerndng the damages ts me awarded by the jury Farm iureau contends that the awards for past and futura loss of wages ar earning capacity wer naanil tirronzous aa not supported r d estly by the evidence tidv Y h tda j e 1 ati as an ues at s v z neral ar a iage d abuse of discreEie d tha th axa9 court uir izp f rant a 3to award ed iPin tt3 IOV C damages for future mental anguish The parties presented extensive evidence to the jury relevant to the issue of s damag The testimony and photographs cor a substantial impact oi the rrned vehicle occupied by Edwards He c transporfed from the accident scene to as Northshore Regional Medical Center where he was admitted overnight and diagnosed with a concussion arad a non skull fracture identified by a CT displaced scan Eight days later on June 13 2006 he presented to Dr Charles R Genovese Jr an internal medicine specialist with a nistory of head trauma from the automobile acciden and two subsequenY e rhen has hands began shaking Y isqdes and he was utiable to speak He aRso repc camplicatidr wi lhis left knee YEd zah lurred L visicn a has right ey a xhoa pain Dr novese ordeted an EEG to ad ide axplor possible seizure a arz an t th tiv r T sca af EdLVard head The EEG was nc andl the CT scan reLealed cerebral edema Y the site of the skull rmal fracture Dr ienUVese diagn Fwith a Anoderate brain injury and post ased dwards concussion syndrome with ossible seizur activii At the suggestion of Dr Genovese Edwards sought additional treaYment wAth several specialists two of whom Dr Richard P Texada an orthopedic surgaon and Dr John T Couvillion had treated Eawa a recent months before the aut accidenr rds n iobile r r I Texada frsx tr Edwards abous r months bef the automobile ated line re accident for stzoulder and ieft knee pain ai a rreport fell n ciwards ter orse dlti 11 During the course of tk prior treatmenx Edwards underwent physical therapy and e an MRI of his left knee tliat showed degenerative changes of his medial meniscus His last visit prior to th J 2006 automobile accident was N17 2005 zne ber ver After the acc3dent Edwaru apresented to Dr Texada on Juiy 18 2Q06 with a history of pain in his shoulder and ieft kxiee related tc the cc Approximately ident one week later Dr Texada perfordned arthroscopic surgery on the knee According to Dr Texada the procedure confirmed significant degenerative changes in the knee but revealed nothing to suggest Edwards had suffered a new injury in the automobile accident Although Dr Texada did not believe the degenerative condition was caused by the accident he did believe that the surgery was necessitated by the accident because the trauma aggravated the pre existing knee condition Edwards lasttreated with Dr Texada on August 15 2006 With respect to his vision Edwards treated with Dr Couvillion on May 12 2006 about three weeks prior to the automobile accident At that time Edwards reported a history of vision problems described as a spot and waves that blind began after he was bucked off a horse and landed on his head earlier in the year Dr Couvillion examination together with an optical coherence tomography s OCT study performed on May 19 2006 revealed a cyst or pseudohole of the macula in Edwards right eye Dr Couvillion stated that the cyst which is a complication of the vitreous separation proeess can progress to a macular hole which requires surgical repair Dr Couvillion also diagnosed cat3racts in both eyes Edwards treated with Dr Couvillion after the accident on July 7 2006 at which time the clinical exam indicated that ihe macula cyst may have developed into a macular hole A second OCT did not confirm a hole evertheless I based upon Edwards course to date Dr Couvillion recommended surgery because he felt that a macular hole was going to come 12 Ultimately Dr Couvillion performed five surgical procedures involving the macula repair Another surgeon Dr Eric Griener oparated to remove a cataract which Dr Couvillion confirmed was a by the macula procedures As of May 5 201 fl Edwards visual taf produ acuity in his right eye was 20 without glasses J As to the etiology ofthe maculai hole Dr Couviilion acknawledged that the head trauma sustained from the horse incident could have been sufficient to start the process but he believed the automobile accident aggravated it or caused that to be mare aggressive causing the hole Edwards remains under the care of Dr Couvillion and continues to use eye drops Edwards neurological condition was the focus of care provided by a number of healthcare providers including three neurologists Dr Arthur Neil Smith III Dr Michael Becker and Dr Marc E Hines one neurosurgeon Dr Donald D Dietz and a neuropsychologist Dr Susan Andrews Edwards treated with Dr Smith shortly after the accident on June 26 2006 presenting a history of head trauma in the accident with a loss of consciousness and three seizures after his discharge from the hospital According to Dr Smith the initial clinical examination and an EEG performed on July 7 2006 were both normal Edwards underwent another EEG on September 29 2006 and an MRI of his brain on October 2 200E both of which were again reported as normal Dr Smith testified that the automobile accident caused a mild to moderate cerebral concussion a skull fracture and post syndrome with some concussive headache and difficulty with balance however during the course uf his treatment over several months Dr Smith could not find anything te corroborate that many of Edwards symptoms were related to trauma He also did not see anyrthing that was consistent with Edwards having seizures and he thought that some of the reported symptoms were psychosomatic meaning real to the patient but not to the doctor Edwards last treated with Dr Smith on October 25 2006 13 Edwards continued treating with Dr Genovese and reported more episodes of seizures Dr Genovese referred Edwards to Dr Hines a neurologist in Iowa who treated Edwards on April 14 20Q7 Dr Hines diagnosed a moderate closed head injury and increased Edwa ar med ds tieonvulsant cations Edwards had several subsequeni telephotte con w pr Hznes but did not reat in ations l ui person with him again On May 17 2007 Edwards saw Dr Dietz a neurosurgeon who would continue to treat Edwards through the date of the trial According to Dr Dietz Edwards sustained a moderate traumatic brain injury a concussion post traumatic stress disorder and post seizure disorder all as a result of the automobile traumatic accident He believes medication that Edwards will continue to require seizure anti By referral from Dr Dietz Edwards saw Dr Becker on April 27 2010 to review the results of an EEG performed on March 10 2010 Dr Becker testified that the EEG demonstrated evidence ot a likely seizure disorder Dr Andrews a neuropsychologist performed an evaluation of Edwards on July 9 2009 and concluded that Edwards had a cognitive disorder personality changes and mood disorder all secondary to traumatic brain injury She also diagnosed an anxiety disorder with limitad symptom panic attacks Edwards testified about numerous seizures he experienced after the automobile accident but medication eventually brought these under control He has continuing difficulty concentrating which makes reading and writing difficult He has balance problems cannot drive very far and is no longer able to hunt He aclrnowledged Yhat the only restriction his physicians have placed on him is that he can no longer participate in riding horses in rodeos The etiology of Edwards neurological symptoms was complicated by s evidence of other accidents in which Edwards sustained head trauma Ir addition to the two horse riding incidents prior to the subject accident the evidence 14 reflected two 3ubsec accz U Se 2 vQ07 Edvv presznted to t ze iFittis a ie r rds the emergency rc a Nd C Ivledi rat ora frt ans rsvirk a hzstozy f fzll off horse landing on fu5ec head or 1 IS r redn n t top of head inutes ss t d The emergeYi4y r hysica c khat i stz his Lca ratkaer 1 ordered n c rk ar a CT s J was nortnaY r iagr k wp a c Less a hic a i c ards tYa r sed ssio than a year later June d 2 c Sre te rkhshore Eye 8 3 wards es ed Associates and reported Hit head rlnaxd an boat a few weel ago Had a adly s mild concussion n Wh askeci about the fa11 that oc in 2006 before the utomobile uxreti accident Edwards initially tesiified ihat he lande or his foot After considering Dr Couvillion smedical record he th testifed that he flanded on his face As for n the 2007 inctdent Edwards disputed dhz accuracy of the emergency room records and said he fell on his back d rot strike his h and was not con ead fused 7Che defense also introducea ev ox Edwards long term alcohol use and dence its possible impact on his cogr abiliiies Edwards daughter Ashley Edwards itive Sandage testified about exivith her ath nces e ra a rduring her chi a adult dhood nd years She described hizr a alays drixiKi gand r ltiple incidents counfed z a irzg ccessi an invol e drzn4 arid ior a re3siNe da a b rds wife dw ex Stephanie Kraesner est that on ar a ied iday Ede cor ve or six ra ards sur ed drinks Ed s nsuanp ds ing contair whiskey and increa h cc on eeke a io He usuaily rezn izx bed on IVflandays axid cu i o to woxk A recently as aed i d ot s 2410 she trave ith Eciwarc on v and ohser ylo difference in is bd s ia cati ed s drinking habtks Os cro wever Kraetra ci to I nh r ati ir exarc itxed during her dE about er s at ihe tirrae af t acc rn osita s estinatiot a der tin orde to s iect rnpensation efi co work o bez a She also admitted t c orating rro Edwards sympto and conditiorA ir her earlier depr ns sition 4t 4he tirne i tria1 Kraemer siull name was Stephan kraetner M e nllex 15 Dr Smith the irst aa to z Edw te that an EEG logis c at rds tified administerec ta Ea had a c Beta a wh au see in people who rds w tf tivzt cli drink a lot The c al intxoduced ara exa rom a rain nse ef t er al j s ssion e xni 1999 where YY tte h ocamer the sus hat E lizzg z k a i sz t t an c e dwards was experien edifly a1 i 3 rid rher e A in hc rl ins cc x rzu cu r rds in a two ounce aaf ka s ar ci F AastifiFC iat h lranEt tl rd Vodka to e e ed improve his pain tolerance Lastly the d introduced ex of tzxedical fense erpts records fr Tulane Medical enter from 1989 reflecting that Edw reported a m rd history of alcohol abuse when h presented to tliai facility with complaints of e memory impairment for one year and like episodes of traxice states Edwards disputed the accuraey of the Tulane mnedical record and denied being an excessive drinker Farm Bureau also presented testimony ror three expea retained to s perform independent medica examin c aluatiens I Juari E Rubio Jr ions r r n ophthal review dwards me records and thc C stazdies He d al di I fied test hat Edwards had a c ore tb accident th r lan nac re l e t turail progressed to a macular hole a the accide how t aecident pflayed no ter at e ae ver rolE in that prcacess Accordin 0 13r Rubica on ifJ c macular holes result v i 1 from t auma and r of th4se c in pea znucfl youzager than Edwards iost ccur ie Dr Kenneth J Gaines a n exa ciwards and revze his gist raed urolc m d v medical records He elieve Ed s a coneussian and a 5kiell fracture ards ffered with some residual injury but he cQUla noti confirr that F had experi ras dw nced s aur se based upon the testzng to daY r aines canclude Yhat Edwaru s cunent ogniti con is h re ta sc degree of he a e itiun c ud nr zYomobile dEaa e acc svr of the prioa in clepr ar ai se ies n u ssi d tzQ1 i al 1 r he d ds assign Edwa an imgairment r f 12 rsiated to his eogz robl ating itive ns 16 Dr Kevin J Bianchini a n luated Edwards and testified apsvchologist a eur e that Edwards symptoms persis long than armal because of the subsequent ed r episodes of head trauma in 20Q and 2008 He also believed that chronic alcohol use contributed to tthe continuxr cogni symp g zve eoms Having reviewed the evidence we nc iurn Yo the assignrnents of error conceming the damage awards Farm Bureau asserts that the jury award of s 00 OQQ 200 in past loss of wages and earning capacity and 160 in or OQ OQO future loss of wages and eaming capacity were manifestly erroneous and not or supported by the evidence The fact finder is accarded broad discretion in assessing awards for lost earnings but there must be a factual basis in the record for the award Driscoll v Stucker 04 La 1 893 So 2d 32 53 To 0589 OS 19 recover for actual wage loss a plaintiff must prove that he would have been earning wages but for the accident in question Boyette v United Services Auto n 1918 Ass 00 La 4 783 So 2d 1276 1279 The amount of lost earnings O1 3 need not be proved with mathematical certainty but by such proof as reasonably establishes the claim and such proof may consist only of the plaintiff s own testimony Driscoll 893 So 2d at 53 An award for lost wages is subject to the manifest error standard of review because such damages must e proven with reasonable certainty Boudreaux v State De of Transp t Dev 04 La 0985 App 1 Cir 6906 So 2d 695 705 writ denied OS La 2924 OS 10 2164 06 10 So 2d 174 and OS I 2 924 So 2d 1018 2242 a 17106 An award for loss of future arning capacity is not predicafed only on the difference between a person earnings before and after the disabling injury It s encompasses the loss of the person earning potential or capacity the loss or s reduction of a person capability to do that for which he is equipped by nature s training and eand for which he may be recompensed Morris v State perience Dept of TYansp 94 La App 1 Cir 10 664 So 2d 1192 1198 writ 2545 95 6 17 denied 95 La 2 667 So 2ci 537 An award for loss of earning 2982 96 9 capacity is inherently speculative and cannot always be calculated with mathematical certainty Thus the trier of fact must exercise s discretion in und making the award in light of tlhe facts and circumstances Great deference should be given to the tt court Ilx revi award for loss of earning capa and it ial igan wi ity should not be set aside absent an abuse of forris 66 o 2d at 1198 discretivn is Edwards a lawyer He testified that his neurological limitations arising after the accident have prevented him from maintaining his law practice and that he austed e his supply of cases Donna Noto a secretary for Edwards for approximately 16 years testified that Edwards had a busy practice before the accident and warked long hours but after the accident she observed that he has trouble concentrating and gets depressed and agitated He struggles to write briefs and cannot organize cases for trial Edwards described himself before the accident the as most successful trial lawyer in this part of the world and now I almost a m joke nobody comes to me Edwards and Noto both testified that Edwards had to hire other attorneys to help him wark on files and nad to pay those lawyers fees totaling 319 which was corroborated by documentary evidence consisting 43 330 of checks and disbursement statements Edward A Shamis Jr a friend and attorney who re Edwards at resented one time in this proceeding testified that Edwards was an innovative and aggressive trial attorney before the accident but after the accident his judgment tlike it used to be he is not as attentive and is not the same person Dr isn Dietz testified that Edwards neurological condition wcsuld make trial work very difficult and he did xiot think Edwards could continu to effectively handle trials and court appearances The defense presented vidence that Edwards continued to pursue his litigation practice after the accident Edwards daughter Sandage confirmed 18 several suits filed by Edwards in the year riar tn this trial including two suits against a hospital she represents a suit against her and her brother and a suit against her husband Under cros Edwards acknowledged appearing examination in court on behalf Qf alient as recentfly as one week prior to the subj trial t The defense also cailed Dr Gearg iZando Rice an expert economist ph who reviewed Edwards tax returr a deposition of his accountant and the list of s fee disbursements to other lawyers hired by Edwards Due to the lack of detail in the documents Dr Rice was unable to definitely determine how much income Edwards would have realized from those disbursements however he estimated a figure of 18 based upon 00 298 a profit percentage of 5 calculated far several years of Edwards practice Dr Rice acknowledged that he had to make certain assumptions and was swinging by my heels a little bit because Edwards had not filed income tax retums for certain years Although the defense presented evidence ta the contrary multiple fact and expert witnesses testified that Edwards cognztive impairments interfere with his ability to pursue his trial practice in the same or similar manner he did prior to the accident Edwards and Noto also Yestified that these limitations required Edwards to hire other lawyers to help him with files and the fees paid to those lawyers were documented by an e Based upon evidence presented and in light of the thibit the great deference accorded to the jury on these a we do not believe the jury vards abused its discretion in awarding 200 in past loss of wages and earning 00 000 or capacity and 16 in fiature loss of wages and earning capacity 00 000 or In Edwards assignmenfs of error he argues that the jury gener damage sl award was an abuse of discretion and thzt the trial court erred in falling to grant a JNOV to award damages for future mental anguish General damages ar those which may rbe fixed with pecuniary exa instead they involve mexital or ot titude physical pain or suffering inconvenience the loss of intellectual gratification or 19 physical enjoymenx c other lc s i g rbvhich annot be defa r s f fe y1e sT e itely measured in mQn tem I v res C S X C 00 La Yaxy s urzccsn as ty v c 0066 00 30 3 10 7 So 2d i70 3ti he srr am r Iasse F ti c h r no t rz aunt rc kri c i by a rraages trial er jud s jur as i in a deiQr f ac rza c tq at d on titie rence f review Taa a FUnec 41w IE 7 a 2 7f3 71 The ht rwri t 3492 C l i role of an appellate eourt in revhe enera darnages is nat to decide what it g ir considers to be an appropriate award but rathPr to review the exercise of discretion by the trier o fact Youn v ar Overseas Co 623 Sa 2d 1257 1260 La a 1993 The initial inqui is whether the award for the particular injuries ar their y d effects urader the particular circumstanees on ihe articular injur on is a clear dper a6use oi the much discretion of the trier of fact Youn 623 So 2d at 1260 Only after such a determination of an abuse of discretion is a resort to pri aivards r appropriate and then for the p o des the hi or lowest point erpose ng ermini ghest which is r ly asana witl7in that saret aun 623 So 2d at i 2 on Er0 In rew ar attack om a ger dawara a s dces nat review a evvin i al as e 3 r c alar partic ztem zn is r he erata darr ard 1s re for an lation h ge d iew abuse of dascretiQn nd i i neral d aw i aaQi abus low it th t nagv arci elyr tnav nat be dis C a C e Fabricata nc 09 ed zharr tus x sho aa s y o117 Ap La J Cir 1r8 37 sa 3d 1Q02 10 C v Goetzrrian 47 a 11 i t n 09f8 App 1 r25l4 So 2d 39 8 ir j 20 A JNOV is rvarranted wh the facts and apointi so strongly and n es zc er e2 e igiy overwhelmi in favc rof ne pai that the caurt believea txea5on men af ble could no arrive ax aontrarw ve The n heauld be rarafed aazld ua the diot otior lxen epoi n evider ts a strc far c itie ai par 2 reasorab ldn ff ovin cy ai exneri could not rcach clAfrferes conclusions not merely h tk is a pof n era rance enand denc ev ioz t mo Ithere is ev oppose to t nQ k as of ie er nce d ae i i nh 20 such quality and ieight inat easor a irnFra iri tri cx of ac rr ab aded rcise impartial judgxner4t nighe re iiifez oth r hs b enied ka rzs y ic rc u s tia d re Anderson v Vew CD 3ere Inc S Se 2d 829 832 La 1991 a Pu r ean ti When V P aieda t cie i ac xeyie rh re LF etermine t fl pe un 3rd whether there is i error c 3 chz rrie ci f omraitte nnan error al a the act ct f McCrea v leum Fetr Ir 6 i1 1962 4 Cir 12r2 @ So d 787 i r9 793 Auttn Cajun Toint Trenture Kroger Go 93 La A 1 Cir 2IT6194 s v 032Q pp 637 So Zd 538 544 writ denaed 94 La 4l29 638 So 2d 224 0674 94 The jury awarded Edwards 20 for past and future physical pain and 00 000 suffering 40 in past mental anguish 50 for disability and QO OOO 00 000 00 000 50 for loss of enjoyment of lzfe resulting in a total award for general es unt mma amc OOOAO d in thP of 160 The jury heaxd consideralale vidence of ards Edv injuries involving his knee eye atad cQgnative complications hov ever soms of that evidence suggested altemative or oontributing causes for those ss conditip rds Edu right y accarding to I Couviilion began to develop r atians r compli pric tc tl accid Althoug 17r Couvillion testified that the e nt accident made the canditiaz pnQr aggressiv and caused the macula hole Dr Rubio testi tha the hoie was a nat pr of Fdw pre ed ral x ressi rds accident condition and bore no causai xelatic to t ac VJith respect to t1 hEad nshap ie ent ie injury the medical experts agrezd t Edwards austained a fract ar a at al k re d n concussi in the accid l etaol of hi res sy nt uever the v dual nptorns particularfly his ognitive fmpaF was ec by evideri o other znent Yed zplic a e instanees nf hea tr bc c and ai P su a anc videz d uma tll fc Ae rtt ject cident ce of long tern and excessive alcohol u by Edwards e f3ath parti saapported h res positi in c zth ariaple s flr ective ns usataon nce gof numerous facY and experi witnesses arad ores fchibits evid eonsisti The juzy was r to eva8uate the credibil c th vitnesses and resolve quireci ty f ese 21 conflicting evidence anG in dso the ur had the prerogative to accept or ing reject all or part of the testimozay of any wbmess including the testimony of the expert witnesses Fleniken v Entergy orporation 00 L App 1 Cir 182 a O1 16 2 780 So 2d ll75 1 writs denaed 01 01 01 96 95 1268 1305 1317 La 6 793 15iQ1 SQ 2d 4 er 1250 1253 f a xeview of ala of the evidence presented during the trial we fin the jury did nc abase its vast discretion in the d t general damage award nor did the trial court commit manifest enor in denying the motion for JNOV BAD FAITH CLAIM The final assignments of error relate to the bad faith claim asserted by Edwards against Farm Bureau That claim was adjudicated by a separate bench trial that concluded with the trial court finding that Farm Bureau did not violate the statutory duties set forth in Louisiana Revised Statutes 22 and 22 1892 1973 Pursuant to written reasons the trial court found that there were substantial reasonable and legitimate questions as to the insured loss and that Farm Bureau s had a reasonable basis to defend the claim and acted in good faith We find no abuse of discretion in this determination Louisiana Revised 22 Statute 1892A 1formerly Loui Revised Statute iana 658 22 requires insurers to pay tne amount of any claim due any insured within thirty days after receipt of satisfactory proQfs of loss Section B of this statute 1 provides in pertinent part Failure to make such payment within thirtq days after receipt of such when such failure satisfactory written proofs and demand therefor is found to be arbitrary capricious or without probable cause shall subject the insurer to a penalty in addition to the amount of the loss of fifty percent damages on the amount found to be due from the insurer to tfie insured or one thousand dollars whichever is greater Louisiana Revised S 22 formerly Louisi Revised Statute atute 1973 na 1220 22 imposes an obligation of good faith nd fair dealing on an insurer 22 including the affirmative duty to adjust claitns fairl and promptly and to make a reasonable effort to sattle claims with the insured ar the ciaimant An insurer may be subjAct to p not to exceed two tim ihe ama sustained or five nalties s es thousand dollars whichever is greater f the insnrer fails to pay a claam due an insured within sixty days ox receiving sati praof af loss vhen such failure ory fa is arbitrary capr or without probabie cause La R 22 and C ciou S 1973B 5 conduct The prohibited by Louisiana Revised Statute 22 is 1 1892A virlually identical to the conduct prohibited in Louisiana Revised Statute 5 1973B 22 the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary capricious or without probable cause Reed v State Farm Mutual Automobile Ins Co 03 La 10 857 So 1007 03 21 2d 1012 1020 The primary difference is the time periods allowed for payment Reed 857 So 2d at 1020 Both statutes are penal in nature and must be strictly construed Reed 857 Sa 2d at 1020 The sanctions of penalties and attorr fees are not assessed unless a ey s plaintiff proofis clear that the insur rwas in fact arbitrary capricious or without probable cause in refitsing to pay Reed 857 Sa 2d at 1021 Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good reliance on that defense Reed 857 So 2d at 1021 Especially faith when there is a reasonable and legitimate question as to the e and causation of ent a claim bad faith Should not be infened from an insurer failure to pay within the s statutory time lirnits when such reasonable doubts exist Reed 857 So 2d at 1021 In those instances where there are substantial reasonable and legitimate questions as to the extent of an insurer sliability or an insured loss failure to pay within s the statutory time period is not arbitrary capricious or without probable cause LouisianaBag Co Inc v Audubon Indem Co 08 La i2 999 So 2d 0453 0 2 1104 l ll4 23 The phrase arbitrary capricious aY without probable cause is synonymous with vexatious and arefusal to pay means unjustified without vexatious reasonable or probable cause c excuse Louisiana Bag Co Inc 999 So 2d at r 1114 Whether refusal t pay is arbitrary capricious or with proba out lecause depends on the facts known to tha insurer t the tim of its actiion Because the question is essentaally a factual issue th trial c fanding should not be urt disturbed on appeal absent manifest error Ileed 857 So 2d at 1021 A district claims manager for Farm Bureau Douglas P Delaune testified at the bench trial about the adjustment of Edwards UM claim On 7uly 27 2006 during the early stages of the investigation of the claim Farm Bureau paid Edwards 5 in medical payments coverage afforded by the Kraemer 00 000 automobile poiicy The first direct communication by Edwards with Farm Bureau was a telephone call thereafter on August 16 2006 wherein he advised that he had sustained a fractured skull bruises to and fluid on the brain loss of sight in one eye hearing loss and left knee and shoulder injuries all as a result ofthe accident On August 17 2006 Farm Bureau tendered 5 in medical payments 00 000 coverage under the Edwards autoznobile policy On or about Decem 8 2006 Edwards submitted a package of inedical er documentation to Farm Bureau Edwards did not provide Farm Bureau with medical authorizations at that time Yhat woald have permitted the company to obtain medical records directly from the healthca pr so Farm Bureau re viders s evaluation was limited to the information provided by Edwards Based upon that documentation Farm Bureau tendered to Edwards he Kraemer autoznobile policy iJM limits of 100 and the Edwards automobzle policy LTM limits of 00 000 30 by checks dated December 18 2006 Farm Bureau received no further contact from Edwards until service of the subject suit on March 9 2007 Thereafter through the discovery prQcess Farm 24 Bureau gatherect th arr mec3i ai xe r dtivards t r pietv zci c uth acc and dent accident post and ca i a rthat ihe cc onsidered ied c f ta a tca z i Y n ny p ez bn aluati tc important th t e sd 1r z reaa 1 ec re the prior and e tl laim t cnts vai a iz ri subseyu ac ir l ty nd ih Ed trear far his i in i r x arus Ent righe eye c t aaccidc irnzi k Bureau andstian anthe omoi t ari4 r 8e n learned of the te prie k axznent x E id assoc tx wiAh r ada Farm iareau also obrained for the first tir th note by Dr Smith wherein he suggested ze that Eavyards symptoms might be psychosomatic Delaune also testified that Farm Bureau received and relied upor an MRI of Edivards brain ordered by Dr Hines Uhai was reported as noz Farm Bu xetained Dr Gaines Dr Rubio mal eau and Dr Bianchini to review the medical records and examine Edward and or their opinions raised further questions im Delaune evaluatzon about the causal s ationship rei of the other accidenrs nd th iLnpact of Edwards 1o term aicohal ng use on lcognitive condition is Based upon our review or the epresented during the rench trial u e find no mani errar in th tr court deternnit est al G ati nthat P Bur rm au s decision Yo vaithhold any kier tend v rzc xbitrary Qr capricious because ks as t substanthal reas na leg qu existecl as ic tihe exten7 Qf Farm ate is ti s ns s y d Bureau liabili a xhe a loss s sured angly d r Accc we affirm trie judgment denying and dlismissang the b faith Iain Ipenalties arid at fP See d r QZ s Fontana v Louzsicana hErfs q Rish P 96 iLa Ap 1 Cir t 52 2 20197 6697 2 1037 Iirnet arbitz c capr fzailing tc 0 suxer ry cio or as make tencter w reason uestios a q ausati exksted rased uno r i bi s an rmal stic n diagnc studies an L s accs nd J v Al v eqaaen mtsj acan u state Ins C 8 La App S f Z126 Q Sc 2d 20 26 writ ena 02 aQ ir 01 ed 0575 L 4 a LEi 2814 S 2d 562 nsurPr tender r arbiziary c capricioas s t r 5 where reasonabie question caf s e bas upon pre c a l satio YSYed d g existi ition and similar symptoms CONCLLSION In cc we fird xhat Che Far 3ur um nv does not ncluise9 n u rella li g provide coverage for xem iz r th r suraamary ara ar d s ag refoxe U s rsw e judgment grznte tca d c Yhat flss ac h awatd c exemplary ar N e te f damages against Farm Bureau and render sumrnary jud in favor of Fartn nent Bureau on that coverage issue W find no abuse of discretiqn in the jurg awards s for past and future lost wages earr capacity and general damages and we bng affrm those awards along with the trial court denial of the motion for JNOV s Finally we affirm the trial court judgment denying and d Edwards s zsmissing claim for penalties and attorney fees pursuant o Louisiana Revised Statutes s 22 892 and 1973 Costs of this appeal are assessed equally to Edwards and Farm u Bwre SUMMARY TENT JtiDG ItEVERSED AND RENDERED JLIDGNiENT VACATED I PART 4ND AF IN PART T FIRMED In flig of our 3ecision ta affircn the conrt r Farm 3iur d not t tnal s tat olding k au ereach its SYatutory uties owed to Edwards we da not cea Ec final assigriment of sider wards mr exi kiaY t1 tr c ened in refizsing to ai expert witness to test abaut the damages eau 1C an ow iy dly eg al sustained by Edwards as a r c tihe alleged violation ofthose stafutory uties suld f 26

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